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Is There a Right Way to Screen Social Media?

Hello! This is Nicolas Dufour, General Counsel at ClearStar, coming to you with the next installment of For the Public Record—a blog that features thought leadership from the most seasoned experts on our staff, across all functions of the background screening process. This month’s post will focus on social media screening—why it’s important and how it works. I hope it helps demystify the process for you so you can take advantage of another tool to understand your candidates better.

Nowadays, it’s common for businesses to make background screening a priority. But for many, social media screening is uncharted territory—and for good reason. Social media screening can waste time and pose risks if not done correctly.

However, with over 2.5 billion users worldwide, employers can’t afford to ignore this wealth of information.

Why Social Media Screening Matters

Social media screening can help prevent problems in common areas of concern like:

Hostility, harassment, and bullying

Safety of employees and clients

Negligent hiring practices and lawsuits

Risk of bad publicity

However, employers should not attempt to screen social media in-house, as they may discover protected information that cannot be considered when making a hiring decision, at least without risking violation of Title VII of the Civil Rights Act of 1964. Remember: you can’t unsee what you’ve already seen.

Examples of protected classes include:

Race

Color

National Origin

Genetic Information

Age

Disability

Veteran Status

Color

Jurisdictional Information

Sex

Sexual Orientation

Gender Identity

A good social media report from a reputable source (i.e. a Consumer Reporting Agency) will avoid such pitfalls and mainly focus on 4 business-related categories:

Potentially Illegal Activity

Potentially Violent Conduct

Sexually Explicit Material

Demonstrations of Racism and/or Intolerance

How Does It Work?

Social media reports usually involve a combination of technology and human expert analytics to adequately identify a candidate’s online presence on any publicly available website, including social media, blogs, micro-blogs, photo sharing, online commerce, news and media, etc. Once a candidate’s profile is identified, the content is reviewed and flagged for any of the workplace safety issues identified above. Only information that is posted directly by the candidate should be included in the report—information posted by third parties should be excluded. The scope of the search depends on the user’s preference and settings. A report is then created with examples of red-flagged material with the redaction of any federal or state-protected class information.

The report provides insight into a candidate’s online behavior and can help employers determine if the candidate is a good fit.

The Employer’s Responsibility

The FTC recognized in its opinion letter dated May 9, 2011 that a company that provides social media screening services used by employers in pre-employment background screening is a Consumer Reporting Agency and such reports are consumer reports subject to the Fair Credit Reporting Act. Therefore, users of such reports must follow the FCRA requirements of providing disclosure and obtaining written consent prior to requesting such reports.

Additionally if the user takes action based on information included in the report, the user must provide a pre-adverse action letter, wait a reasonable amount of time for the candidate to dispute the information and have the chance to provide mitigating circumstances to the employer. After review of any information provided by the candidate/employee, if the employer decides not to hire/retain the candidate/employee, the employer shall then provide a final adverse action letter to the candidate/employee.

It is worth noting that the limitations imposed under various ban the box regulations apply directly to employers and they generally do not make a distinction whether you obtain the information internally or from a third-party vendor. The EEOC does not make a distinction either. Therefore, you should rely on a subject matter expert in order to avoid legal pitfalls.

Social media screening done right can be a powerful tool for identifying the best candidates for your business. The first step is choosing the right background screening partner to rely on. For more information, view our webinar on the topic here. This is For The Record.

Nicolas Dufour - EVP and General Counsel, Corporate Secretary

Nicolas Dufour advises ClearStar’s management team on all legal matters, issues, and risks impacting the organization. He provides legal guidance, legal management, and operating standards related to business; state and federal laws; regulatory; and legal strategic matters. Nicolas has more than two decades of legal practice experience and twelve years of experience in the background check industry.

Before joining ClearStar, he was Chief Regulatory Counsel at First Advantage Corporation, where he oversaw litigation matters and regulatory enforcement investigations related to privacy and data security issues.

At ClearStar, we are committed to your success. An important part of your employment screening program involves compliance with various laws and regulations, which is why we are providing information regarding screening requirements in certain countries, region, etc. While we are happy to provide you with this information, it is your responsibility to comply with applicable laws and to understand how such information pertains to your employment screening program. The foregoing information is not offered as legal advice but is instead offered for informational purposes. ClearStar is not a law firm and does not offer legal advice and this communication does not form an attorney client relationship. The foregoing information is therefore not intended as a substitute for the legal advice of a lawyer knowledgeable of the user’s individual circumstances or to provide legal advice. ClearStar makes no assurances regarding the accuracy, completeness, or utility of the information contained in this publication. Legislative, regulatory and case law developments regularly impact on general research and this area is evolving rapidly. ClearStar expressly disclaim any warranties or responsibility or damages associated with or arising out of the information provided herein.

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